Workplace bullying and the law
Workplace bullying is an acknowledged problem in any jurisdictions and attempts have been made to produce laws to control it. Law in United States In the United States, court action based on workplace bullying is problematic at best. A plaintiff must prove a) that the bullying actually occurred, b) that the bully's actions fall into at least one of the four categories mentioned above and c) that the plaintiff's subsequent problems stemmed from the bully's actions. As of this writing, only five states have legislation against workplace bullying pending, and no state has ever passed laws against it. However, some states do have laws against creating or maintaining a "hostile work environment". Many states also have general laws against harassment, but charges of harassment are notoriously hard to prove. Katherine Lippell, Comparative Labor Law & Policy Journal entitled, The Law of Workplace Bullying: An International Overview, Volume 32, Number 1, Fall 2010 is among those who has criticised the efficacy of the pending workplace bullying legislation, the Healthy Workplace Bill, which has been introduced in several states. “The requirement of malicious intention is of particular concern, and is not a requirement in the other legislation studied in this issue … Most legislation does not require evidence of the intention of the perpetrator of harassment (see for instance the interpretation and application of the legislation in France and Québec, and the Code of practice in Spain), and while malicious intent may lead to an increased award in Germany, evidence of intent is not required in the application of remedies provided for either in contract or tort liability contexts... Similarly, the proposed Healthy Worker Bill imposes an evidentiary requirement that has been critiqued as being “an over-high standard of severity,”… requiring evidence of tangible harm to the plaintiff … It is understandable that the difficult context applicable in the United States with regard to rights of workers may favor a more restrictive legislative approach for purposes of political expediency, yet even some authors from the United States have expressed concern with the restrictive conditions proposed in the Healthy Workplace Bill.” Two laws that have proven useful in the United States are the Civil Rights Act of 1964 and the Americans With Disabilities Act. However, the plaintiff must prove that the bully's actions violate the conditions of these statutes. However, one issue that makes rectifying such a situation in the United States is the fact that most U.S. states operate under the doctrine of at-will employment. This means that an employee can be terminated for any or no reason, except where there are obvious civil rights violations, which can be difficult to prove (the burden of proof is on the fired employee). It is often easier for an employer to fire a bullied employee rather than deal with the root causes of the situation, especially if favouritism is involved. Law in Canada The Canadian Province of Quebec introduced legislation addressing workplace bullying on 1 June 2004. In its Act representing Labour Standards "psychological harassment" is prohibited. The Commission des normes du travail is the organization responsible for the application of this act.Commission des normes du travail Under the Ontario Occupational Health and Safety Act 1979, "all employers must take every precautions reasonable in the circumstances to protect the health and safety of their workers in the workplace. This includes protecting them against the risk of workplace violence "Ontario Occupational Health and Safety Act 1979 Ministry of Labor, Ontario, Canada. The Act requires establishment of Joint Occupational Health and Safety Committees for larger employers. Under the act, workplace violence is defined as "...the attempted or actual exercise of any intentional physical force that causes or may cause physical injury to a worker. It also includes any threats which give a worker reasonable grounds to believe he or she is at risk of physical injury"Workplace Violence Ministry of Labor, Ontario, Canada. Law in United Kingdom In the United Kingdom, although bullying is not specifically mentioned in workplace legislation, there are means to obtain legal redress for bullying. The Protection from Harassment Act 1997Protection from Harassment Act 1997 is a recent addition to the more traditional approaches using employment-only legislation. Notable cases include Majrowski v Guy's & St Thomas' NHS Trust wherein it was held that an employer is vicariously liable for one employee's harassment of another, and Green v DB Group Services (UK) Ltd, where a bullied worker was awarded over £800,000 in damages. In the latter case, at paragraph 99, the judge Mr Justice Owen said: :"...I am satisfied that the behaviour amounted to a deliberate and concerted campaign of bullying within the ordinary meaning of that term." Bullying behaviour breaches other UK laws. An implied term of every Employment contract in the UK is that parties to the contract have a (legal) duty of trust and confidence to each other. Bullying, or an employer tolerating bullying, typically breaches that contractual term. Such a breach creates circumstances entitling an employee to terminate his or her contract of employment without notice, which can lead to a finding by an Employment Tribunal of unfair dismissal, colloquially called Constructive dismissal. An employee bullied in response to asserting a statutory right can be compensated for the detriment under Part V of the Employment Rights Act 1996, and if dismissed, Part X of the same Act provides that the dismissal is automatically unfair. Where a person is bullied on grounds of sex, race or disability et al, it is outlawed under anti-Discrimination laws. It was argued, following the obiter comments of Lord Hoffman in Johnson v. Unisys in March 2001,Judgments - Johnson (A.P.) v. Unisys Limited, Uk Parliament - PublicationsJohnson v Unisys Ltd [2001 IRLR 279 House of Lords], Case Summaries, Equal Opportunities Commission, UK that claims could be made before an Employment Tribunal for injury to feelings arising from unfair dismissal. It was re-established that this was not what the law provided, in Dunnachie v Kingston upon Hull City Council, July 2004 Dunnachie v Kingston upon Hull City Council 2004 wherein the Lords confirmed that the position established in Norton Tool v Tewson in 1972, that compensation for unfair dismissal was limited to financial loss alone. Unfair dismissal compensation is subject to a statutory cap set at £60600 from Feb 2006. Discriminatory dismissal continues to attract compensation for injury to feelings and financial loss, and there is no statutory cap. Law in Sweden Workplace bullying in Sweden is covered by the Ordinance of the Swedish National Board of Occupational Safety and Health containing Provisions on measures against Victimization at Work, which defines victimisation as ''"...recurrent reprehensible or distinctly negative actions which are directed against individual employees in an offensive manner and can result in those employees being placed outside the workplace community."''Ordinance of the Swedish National Board of Occupational Safety and Health containing Provisions on measures against Victimization at Work AFS 1993:17 Official English translation The act places the onus on employers to plan and organise work so as to prevent victimisation and to make it clear to employees that victimisation is not acceptable. The employer is also responsible for the early detection of signs of victimisation, prompt counter measures to deal with victimisation and making support available to employees who have been targeted. Law in Australia Each state has its own legislation. In Queensland there is no law against workplace bullying although anti-discrimination and stalking laws could be used to prosecute if appropriate. In Victoria, legislation comes from Worksafe Victoria. if bullying endangers a worker's health causing stress or any other physical harm, a corporation can be found liable for not providing a safe place for their employees to work.Worksafe, Victorian Workcover Authority ----- See also References & Bibliography Key texts Books Papers Additional material Books Papers *Google Scholar External links Category:Bullying